Peel v. Burk

197 N.W.2d 617

• Court: Supreme Court of Iowa
• Decided: May 11, 1972
• Docket: 54815
• Status: Published

Opinions

RAWLINGS, Justice.

Defendants (proponents) initiated proceedings pursuant to The Code 1966, Chapter 465, for establishment of an open agricultural drainage ditch across lands of others. Plaintiffs (objectors) resisted. County board of supervisors (board) denied request and proponents appealed to district court. From order there entered overruling objectors’ motion to dismiss, they take permissive appeal.

Errors here asserted are, trial court erred in failing to hold (1) chapter 465 permits deprivation of property without due process of law and therefore violates U.S.Const., amend. 14; (2) chapter 465 permits the taking of private property without just compensation being paid, thus violating the United States and Iowa Constitutions; (3) proponents failed to secure a permit from the Iowa Natural Resources Council as required by Code chapter 455A.

I. The legislature may enact any law desired providing it is not clearly prohibited by some provision of the federal or state constitutions. Every reasonable presumption must be called upon to support a legislative enactment. Furthermore, a challenging party must negate every reasonable basis upon which an act can be upheld. Also, if constitutionality of legislation is merely doubtful or fairly debatable the courts will not interfere. Neither is it for the judiciary to determine whether legislative acts are wise or unwise. Briefly stated these objectors assumed a heavy burden. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 771 (Iowa); Farrell v. State Board of Regents, 179 N.W.2d 533, 537-538 (Iowa); Abolt v. City of Fort Madison, 252 Iowa 626, 634, 108 N.W.2d 263.

II. As noted above objectors first take the position chapter 465 unconstitutionally deprives them of due process of the law in that it permits the taking of their property for private use.

An examination of the record discloses objectors never previously voiced any such challenge by their motion to dismiss, or otherwise.

In that regard this court has consistently held matters not raised in trial court, including constitutional questions, cannot be effectively asserted the first time on appeal. See State for Use of City of Dubuque v. Conrad, 191 N.W.2d 648, 649 (Iowa); Katko v. Briney, 183 N.W.2d 657, 662 (Iowa); Continental Ill. Nat. Bank and Trust Co. v. Security State Bank, 182 N.W.2d 116, 119 (Iowa).

And, courts will not ordinarily initiate an inquiry regarding constitutional issues. See Buda v. Fulton, 261 Iowa 981, 989, 157 N.W.2d 336.

We do not now entertain this belatedly asserted issue. Further discussion will serve no useful purpose.

III. Objectors also contend chapter 465, in effect, permits the taking of private property without just compensation in violation of U.S.Const., amends. 5 and 14, and Iowa Const., § 18, art. I.

In this regard they take the position, absence of specific provision in the act for payment of their (condemnees) trial preparation expenses, and fees for attorneys and expert witnesses, denies them the compensation to which they are constitutionally entitled.

Argument advanced in support of that stand is devoid of merit under our prior pronouncements to which we now adhere. See In re Legislative Districting of General Assembly, 193 N.W.2d 784, 791-792 (Iowa); City of Ottumwa v. Taylor, 251 Iowa 618, 621-626, 102 N.W.2d 376; Nichol v. Neighbour, 202 Iowa 406, 210 N.W.281. See also Kirby Lumber Corporation v. State of Louisiana, 293 F.2d 82, 87 (5th Cir.); State v. McDonald, 88 Ariz. 1, 352 P.2d 343, 351; Frustuck v. City of Fairfax, 230 C.A.2d 412, 41 Cal.Rptr. 56, 59; 30 C.J.S. Eminent Domain §§ 381, 386; Annot. 18 A.L.R.2d 1225, 1229. See also 4A Nichols on Eminent Domain, § 14.249 [3], [4] (3rd ed.).

The issue here raised must be and is resolved adverse to objectors.

In event a change in the law regarding the instant subject matter be deemed advisable we believe it should and might well be effected by the general assembly, not by judicial fiat.

IV. Finally, in support of a reversal, objectors assert proponents fatally failed to show the securing of a Code chapter 455A permit from the Iowa Natural Resources Council for construction of the requested open agricultural drain.

We find no statute or rule which directs or infers a chapter 465 applicant must allege he has obtained a chapter 45 5A permit. See Code §§ 455A.18, 4S5A.25, 455A.-27.

Affirmed.

All Justices concur, except REYNOLD-SON, J., who dissents, and McCORMICK, J., who takes no part.